LM-2024-000066 - [2025] EWHC 1416 (Comm)

the statement of case discloses no reasonable grounds for bringing or defending the claim;

the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or

there has been a failure to comply with a rule, practice direction or court order.

it considers that the party has no real prospect of succeeding on the claim, defence or issue; and

there is no other compelling reason why the case or issue should be disposed of at a trial.

The court must consider whether the claimant has a ‘realistic’ as opposed to a ‘fanciful’ prospect of success.

A ‘realistic’ claim is one that carries some degree of conviction. This means a claim that is more than merely arguable.

In reaching its conclusion the court must not conduct a ‘mini-trial’.

This does not mean that the court must take at face value, and without analysis, everything that a claimant says in their statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents.

However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also other evidence that can reasonably be expected to be available at trial.

Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible, or permissible, on an application for summary judgment. Thus the court should hesitate about making any final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to, or alter, the evidence available to a trial judge, and so affect the outcome of the case.

On the other hand, it is not uncommon for an application under CPR 24 to give rise to a short point of law or construction; and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of that question, and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent’s case is bad in law, they will in truth have no real prospect of succeeding on their claim, or successfully defending the claim against them (as the case may be). Similarly, if the applicant’s case is bad in law, the sooner that is determined, the better. Conversely, if it is possible to show by evidence that, although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist, and can be expected to be available at trial, it would be wrong to give summary judgment, because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because, Micawber-like, something may turn up which might have a bearing on the question of construction.

As Mummery LJ warned in the Doncaster case at [10], on applications for summary judgment the court must be alert to ‘the defendant, who seeks to avoid summary judgment by making a case look more complicated and difficult than it really is’. But as he also said at [11], the court should beware ‘the cocky claimant who … confidently presents the factual and legal issues as simpler and easier than they really are and urges the court to be ‘efficient’ …’. Efficiency is not a ground for entering summary judgment. Judgment without a trial may sometimes result in huge savings of time and costs; that would have been so in the hugely expensive litigation in Three Rivers District Council v Bank of England. But neither Part 24, nor the overriding objective, permits the court to enter judgment on the basis that the claimant has a strong case, the defence is not likely to succeed, and the time and costs involved in a trial are disproportionate to the potential gains.

Where summary judgment will not dispose of the whole case, and there will have to be a trial anyway, regardless of the outcome of the summary judgment application. This is of particular relevance if, at the trial, there will, or is likely to, be evidence concerning the same, or similar, factual matters as those traversed in the application.

Where the trial will involve at least materially overlapping issues to those thrown up for summary determination, and there is a risk that the facts, as found, could throw a different light upon the position as it might now be thought to be.

… the court should still consider very carefully before accepting an invitation to deal with single issues in cases where there will need to be a full trial on liability involving evidence and cross-examination in any event, or where summary disposal of the single issue may well delay, because of appeals, the ultimate trial of the action … Removing road blocks to compromise is of course one consideration, but no more than that. Moreover, it does not follow from Lewison J’s seventh principle that difficult points of law, particularly those in developing areas, should be grappled with on summary applications … Such questions are better decided against actual rather than assumed facts. On the other hand it may be possible to say that the trajectory of the law will never on any view afford a remedy …

Allegations that a representation is said to have been made fraudulently must be identified with precision. The precise representations (and whether they were express or implied), and the precise respects in which they were factually false, must be pleaded.

An explanation of the way in which the representee relied upon the representations must be provided. The reader cannot be left guessing.

One cannot simply suggest that a case of fraud will ‘crystallise’ in the course of disclosure, and following witness statements. If it is made at all, a clear and sustainable case in fraud must be made at the time of the pleadings. This must be done in the pleading, verified by a statement of truth, and not in the evidence. It is no answer to say that the case might become clearer, or sustainable, at a later stage.

Mr Mesfin emphasises that pleadings shape the case. They need to be precise, particularly in cases of alleged fraud.

Statements of case must be concise. They must plead only material facts, meaning those necessary for the purpose of formulating a cause of action or defence, and not background facts or evidence. Still less should they contain arguments, reasons or rhetoric. These basic rules were developed long ago and have stood the test of time because they serve the vital purpose of identifying the matters which each party will need to prove by evidence at trial.